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Proselytism and the Right to Freedom from Improper Irreligious Influence: the Example of Public School Education

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Proselytism and the Right to Freedom from Improper Irreligious Influence: the Example of Public School Education The University of Notre Dame Australia ResearchOnline@ND Law Papers and Journal Articles School of Law 2014 Proselytism and the right to freedom from improper irreligious influence: the example of public school education S de Freitas The University of Notre Dame Australia, [email protected] Follow this and additional works at: https://researchonline.nd.edu.au/law_article Part of the Law Commons This article was originally published as: de Freitas, S. (2014). Proselytism and the right to freedom from improper irreligious influence: the example of public school education. Potchefstroom Electronic Law Journal, 17 (3), 868-887. Original article available here: http://www.ajol.info/index.php/pelj/article/view/107836 This article is posted on ResearchOnline@ND at https://researchonline.nd.edu.au/law_article/60. For more information, please contact [email protected]. This article originally published in Potchefstroom Electronic Law Journal. De Freitas, S. (2014). Proselytism and the right to freedom from improper irreligious influence: the example of public school education. Potchefstroom Electronic Law Journal, 17(3), 868-887. doi: 10.4314/pelj.v17i3.01 Author: SA de Freitas PROSELYTISM AND THE RIGHT TO FREEDOM FROM IMPROPER IRRELIGIOUS INFLUENCE: THE EXAMPLE OF PUBLIC SCHOOL EDUCATION ISSN 1727 -3781 2014 VOLUME 17 No 3 http://dx.doi.org/10.4314/pelj.v17i3.01 SA DE FREITAS PER / PEJL 2014(17)3 PROSELYTISM AND THE RIGHT TO FREEDOM FROM IMPROPER IRRELIGIOUS INFLUENCE: THE EXAMPLE OF PUBLIC SCHOOL EDUCATION SA de Freitas 1 Introduction The words "proselytism" and "proselytise" descend from a Greek word proselutos, meaning "one who has come to a place" or "one who comes over". Jurisprudentially speaking, proselytism is a concept within the larger genus of the protection of religious rights and freedoms, and lends itself to differing opinions.1 There are also different insights into proselytism emanating from the various traditional religions and the plethora of denominations within each.2 However, a substantial school of thinking assumes that proselytism can take place only in a religious context. Lawrence Uzzell comments: "We live in an age of persuasion, in which we are bombarded by political and commercial messages designed to change our thoughts and actions, but the unfavourable term 'proselytism' is reserved for specifically religious persuaders."3 Uzzell adds that "[s]ecular specialists on human rights and international law, even those who defend freedom of conscience, now use the word 'proselytism' to mean any attempt by any religious believer to win converts from other religions or from irreligion".4 The question arises whether improper proselytism is relevant only to "religious forms of improper influence" and excludes other forms of "improper belief influence". It is argued in the article that influencing the beliefs of someone improperly can include a kind of proselytising action pertaining to a belief, which is not only religious by nature but also of one that is irreligious. In addition to improper "religious" proselytism, improper proselytism should include an understanding of improper SA de Freitas. BProc LLB LLM (UFS). Associate Professor, Department of Constitutional Law and Philosophy of Law, University of the Free State. Email: [email protected] 1 Garnett 2005 USTLJ 465-466. 2 See for example Witte and Martin Sharing the Book. 3 Uzzell 2004 http://www.questia.com/library/1G1-122989524/don-t-call-it-proselytism. 4 Uzzell 2004 http://www.questia.com/library/1G1-122989524/don-t-call-it-proselytism. 868 SA DE FREITAS PER / PEJL 2014(17)3 "irreligious" proselytism. This article illustrates this understanding by means of the risks embedded in exclusively irreligious public education and teaching.5 2 The right to freedom of religion, belief and education From the Universal Declaration of Human Rights6 and the European Convention on Human Rights7 it is clear that freedom of thought is a basic right of "everyone". There is no age limit at which people begin to enjoy such a legal right. Young persons (and therefore pupils) have a right to freedom of thought. This right is important in the context of school education, where a student's freedom of thought may be restricted by ideological indoctrination.8 Article 5(1)(b) of the Convention against Discrimination in Education places the emphasis on the protection of a person's (or group's) convictions as well as the protection of the liberty of parents to have their children morally educated in accordance with their convictions.9 5 By this it is not implied that there are no public institutions in democratic and plural societies where religious knowledge is forced upon irreligious recipients. Nonetheless, the focus of this article is on those public teaching institutions in so-called democratic and plural societies, such as schools, where irreligious forms of knowledge are forced upon irreligious recipients. Needless to say, the argument presented in this article will also be of value to instances where religious knowledge is forced upon an irreligious recipient, or where a religion is forced upon a recipient loyal to another religion. 6 Article 18 of the Universal Declaration of Human Rights (1948) states: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." 7 Article 9(1) of the European Convention on Human Rights (1950), which states: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance." This reads exactly the same as Article 18 of the Universal Declaration of Human Rights. 8 Clarke 1986 ICLQ 271. Neither the Universal Declaration on Human Rights nor the European Convention on Human Rights explicitly acknowledges the rights of children to freedom of thought in schools. The UN Declaration (Article 26(3)) provides that "parents have a prior right to choose the kind of education that shall be given to their children". A similar principle concerning the relative priority of parents' rights, is expressed by Article 2 of the Protocol 1 to the European Convention on Human Rights (1952) 271. From this it is clear that although the right to freedom of thought is guaranteed by the European Convention to everyone, the education initiatives of the state are explicitly limited only by reference to the "religious and philosophical conviction" of parents. 9 The Convention against Discrimination in Education (1960), Article 5(1)(b): "The States Parties to this Convention agree that: (b) It is essential to respect the liberty of parents and, where applicable, of legal guardians … to ensure in a manner consistent with the procedures followed in the State for the application of its legislation, the religious and moral education of the children in conformity with their own convictions; and no person or group of persons should be compelled to receive religious instruction inconsistent with his or their convictions." 869 SA DE FREITAS PER / PEJL 2014(17)3 Article 18 of the International Covenant on Civil and Political Rights and Articles 1 and 6 of the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief may be affected by coercion or through religious persons being subjected to preaching that harm their beliefs.10 The provisions of Article 19(1) of the International Covenant on Civil and Political Rights concerning the right to hold opinions without interference include the understanding that religious persons may not wish to be exposed to any type of indoctrination in any form.11 Protocol 1 of Article 2 of the European Convention and Article 18(4) of the International Covenant on Civil and Political Rights deal with the liberty of parents and/or legal guardians to ensure that the religious and moral education of their children conforms to their own convictions. This should be read in conjunction with Article 13(3) of the International Covenant on Economic, Social and Cultural Rights.12 Article 51(a) of the UNESCO Convention reaffirms the right of parents or legal guardians to ensure "the religious and moral education of the children in conformity with their own convictions, and no person or group of persons should be compelled to receive religious instruction inconsistent with his or their conviction".13 The issue of religious freedom at public schools is a controversial contemporary concern. At the annual sessions of the United Nation's Human Rights Council, the topic of religious instruction within the framework of the fundamental right to religious freedom is constantly on the agenda for discussion and resolution. The question regularly asked is if religious instruction should take place at public schools and, if so, how it should be implemented to do justice to the fundamental right to religious freedom in a constitutional state.14 Stephen Carter states: "Too many of today's theorists of liberalism … seem determined to use 'public' education to create a nation where everybody thinks the same way."15 In this quest towards universal 10 Lerner 1998 EILR 484. Lerner's referral to "preaching that harms their beliefs" is not sufficiently nuanced. Here one would rather talk about some form of "coerced preaching" as preaching per se is not necessarily coerced. 11 Lerner 1998 EILR 484. 12 Lerner 1998 EILR 514-515. 13 Lerner 1998 EILR 539. 14 Vorster 2010 NGTT 205. Here one needs to be careful in presenting the idea that public schools are connoted to only that which is irreligious. 15 Carter 1997 SHLR 1224.
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